SAN RAMON / Felony charge of endangerment tough to prove / Case could come down to how jurors feel about parents

Published 4:00 am, Saturday, January 7, 2006

Contra Costa County prosecutors will have to do a lot more than paint the San Ramon couple who took off for Las Vegas and left their children unattended as bad parents to convict them of felony child endangerment.

Before Jacob Calero and Michelle De La Vega are subjected to prison sentences of up to six years, a jury must find that they knew, while they were spending a long New Year's weekend in Las Vegas, that their 10- and 5-year-old boys were at risk of dying or being seriously injured back home.

It's a formidable task, at least on paper. Felony child endangerment charges normally are difficult to prove when a child has suffered no injuries, said Linda Klee, a San Francisco prosecutor who is chief of administration for District Attorney Kamala Harris.

Authorities said the San Ramon boys had been found unharmed and asleep in a house stocked with TV dinners and breakfast cereal. That means jurors will be told they can convict the parents of felony endangerment only if they decide that the children were in serious danger and that the parents' actions showed a "disregard for human life or indifference to the consequences," said Klee, who formerly headed her office's child abuse and sexual assault unit.

That may require evidence of dangerous conditions in the home, she said.

But Scott Ciment, a defense lawyer in Newport Beach (Orange County) and board member of the defense lawyers' group California Attorneys for Criminal Justice, said the technical requirements of the law often matter less than jurors' feelings about the parents.

"If they don't like the parents, and it's a really horrible situation, they're going to find them guilty of a felony," said Ciment, who has defended several such cases. "It's a complete judgment call."

The law under which Calero and De La Vega were charged Friday prohibits willfully causing or permitting a child in one's custody to suffer "unjustifiable physical pain or mental suffering," or willfully causing or permitting a child to be placed in a situation where the child's health is endangered.

If the child was placed in conditions "likely to produce great bodily harm or death," the crime is a felony, punishable by two to six years in state prison. If not, it's a misdemeanor punishable by as much as six months in county jail.

The law covers a variety of situations. San Francisco prosecutor Linda Moore, head of the office's child assault unit, said she had charged parents with endangerment for driving drunk with children in the car, for driving without a child safety seat and for wheeling a child in a stroller while drunk.

The stroller case was charged as a misdemeanor. But Moore said she had charged one woman with a felony for leaving a 4-month-old at home alone on an unprotected bed, and another for allegedly leaving a sleeping 4-year-old. That child later awoke, walked out the door and was spotted by a neighbor crossing the street. The case is still pending.

"We tell the jury they don't leave their common sense behind" in deciding whether a parent left a child in serious danger, Moore said. She added, however, that she hadn't taken any felony cases to trial and instead had accepted guilty pleas that generally included jail time and yearlong parental training courses.

Ciment, the defense lawyer, said parenting classes were mandatory after convictions for endangerment and usually made more sense than prison for parents who hadn't shown a pattern of abuse.

There's a legitimate distinction, he said, "between parents who beat the kid maliciously, causing harm, and someone who does something incredibly stupid." But in the San Ramon case, he said, "with the level of neglect (that authorities allege), I don't see how they could not charge it as a felony."

Dave LaBahn, executive director of the California District Attorneys Association, said prosecutors generally considered several factors in deciding what charges to file: past acts of neglect, which could show that the parents knew of the risks; emergencies that might explain a brief absence; the children's age; how long they were left alone; and how far away the parents were.

The criteria are subjective, he said, and may vary in different regions and in urban and rural areas.

A separate state law applies to parents who leave children up to 6 years old in the car who aren't supervised by someone 12 or older.

If the key is in the ignition, or if other circumstances, such as high temperatures or locked doors, show a risk to health or safety, the parent is guilty of an infraction punishable by a $100 fine, said Brian Perkins, an aide to Sen. Jackie Speier, D-Hillsborough, who sponsored the law in 2001. He said the parent could also be charged with endangerment if the risks were more serious.

The purpose of Speier's bill, Perkins said, was not to punish parents but to educate them about dangerous practices and "to get the police to act."

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